SUPREME COURT HOLDS AS APPELLANTS FAILED TO GIVE EVIDENCE OF UNINTERRUPTED USE, EASEMENTARY RIGHTS CANNOT BE ALLOWED

Recently, a two Judge Bench of the Hon’ble Supreme Court comprising of Justice Pankaj Mithal and Justice Prashant Kumar Mishra passed a Judgment dated 10-04-2024 in the matter of Manisha Mahendra Gala & Ors. Vs Shalini Bhagwan Avatramani & Ors. Civil Appeal No. 9642 of 2010 and Civil Appeal No. 9643 of 2010 and observed that the Appellants failed to establish that their predecessors-in-interest have used the disputed road peacefully, without any interruption from the Respondents, for more than 20 years and hence, the Appellants are not entitled to easementary rights thereof.

Facts

i) In the present case, the Respondents, (1) Ms. Shalini Bhagwan Avatramani, (2) Ms. Bhagwn Dhunichand Avatramani through Power of Attorney (POA) Holder, Mr. Arjun Dhunichand Ramani, (3) Sharda Arjun Ramani through POA Holder, Mr. Arjun Dhunichand Ramani and (4) Mr. Arjun Dhunichand Ramani owned a 20ft. wide road situated over land bearing Survey No. 48 Hissa No.15 admeasuring 1 hectare and 76 acres situated at Mouje Korlai, Taluka Murud in Maharashtra (Respondents’ Property).

ii) Thereafter, the descendants of one, Mr. Mahendra Gala i.e. the Appellants, (1) Ms. Manisha Mahendra Gala, (2) Mr. Yashraj Mahendra Gala and (3) Mr. Nihar Mahendra Gala instituted a Suit bearing Suit No. 14 of 1994 before the Ld. Civil Court in Maharashtra seeking a declaration of easementary right of way by prescription as well as of necessity over the 20 ft. wide road situated in the Respondents’ Property in order to have access to their land in Survey No. 48 Hissa No. 15 adjoining the Respondents’ Property (Appellants’ Land). An injunction was also claimed restraining the Respondents from obstructing the Appellants from using the aforesaid right of way.

iii) The Civil Court decreed the Suit in favor of Appellants, vide Order dated 06-02-2003.

iv) However, the Ld. Ad-hoc District Judge-2, Raigad (Appellate Court) set aside the Civil Court’s Order dated 06-02-2003 in the Second Appeal filed by the Respondents, vide Order dated 12-03-2009.

v) Aggrieved, the Appellants filed Second Appeal No.305 of 2009 and Second Appeal No.306 of 2009 before the Hon’ble Bombay High Court, which was dismissed, vide Common Order dated 01-10-2009 on the ground that the High Court cannot intervene with the fact findings of the Appellate Court, which found that “in order to prove the easementary right by way of prescription, the appellants must prove that they are using the way continuously, openly without any interruption and as of right for a period of 20 years.” “However in the present case, the appellant/plaintiffs have failed to prove the right of easement either by way of prescription or necessity.”

Supreme Court Observations

Aggrieved by the Bombay High Court Order dated 01-10-2009, the Appellants filed SLP(C) No. 028647 / 2009 and SLP(C) No. 009643 / 2009 before the Hon’ble Supreme Court, which was registered as Civil Appeal No. 9642 of 2010 and Civil Appeal No. 9643 of 2010 respectively. The Apex Court, vide Order dated 10-04-2024, observed as follows:

1) “The term ‘Easement’ is defined under Section 4 of the Indian Easements Act, 1882 to mean a right which the owner or occupier of a land possesses for the beneficial enjoyment of his land on the other land which is not owned by him, to do and continue to do something or to prevent and continue to prevent something being done on the said land. It may be pertinent to mention here that the land which is to be enjoyed by the beneficiary is called ‘Dominant Heritage’ and the land on which the easement is claimed is called ‘Servient Heritage’. The easementary right, therefore, is essentially a right claimed by the owner of a land upon another land owned by someone else so that he may enjoy his property in the most beneficial manner.”

2) That as per the Appellants, in order to have beneficial enjoyment of their Land, they have to use the disputed road situated in the Respondents’ Property.

3) That as per Section 15 of the Indian Easements Act, 1882 (Acquisition by prescription) in order to acquire easementary right by prescription, the said right must have been peaceably enjoyed, without interruption, in respect of the servient heritage for more than 20 years.

4) However, the Appellants have not produced any evidence or witness to show that their predecessors-in-interest have enjoyed such easementary right peacefully, without any interruption, for more than 20 years.

5) The POA Holder of the Appellants deposed as a witness and stated that the disputed road existed on the Respondents’ Property and that they are creating obstructions against the Appellants’ use of the road, as a result of which, the access to the Appellants’ Land has been blocked.

6) That in respect of the capacity of a POA holder to depose as a witness on behalf of the principal, the Bench observed as follows:

i) The law as understood earlier was that a General Power of Attorney holder though can appear, plead and act on behalf of a party he represents but he cannot become a witness on behalf of the party represented by him as no one can delegate his power to appear in the witness box to another party.

ii) Power of Attorney holder can depose and verify on oath before the court but he must have witnessed the transaction as an agent and must have due knowledge about it.

iii) The Power of Attorney holder who has no knowledge regarding the transaction cannot be examined as a witness.

iv) The functions of the General Power of Attorney holder cannot be delegated to any other person without there being a specific clause permitting such delegation in the Power of Attorney; meaning thereby ordinarily there cannot be any sub-delegation.

7) Thus, the Bench observed that the POA Holder in the present case cannot depose about the facts that transpired much before he entered the scene.

8) Even otherwise, the aforesaid evidence and the Surveyor’s Report only proves existence of the disputed road in the Respondents’ Property but the same does not establish that the Appellants have used the disputed road peacefully, without any interruption, for more than 20 years i.e. much prior to institution of the Suit by the Appellants.

9) Furthermore, the Appellants have claimed easementary right by way of necessity on the ground that the access to the Appellants’ Land would be completely blocked if such right is not declared in their favor. However, the Bench held that the Appellate Court had made a finding regarding existence of an alternative way to access the Appellants’ Land, which may be a little far away or longer, but it demolishes the easement of necessity, as required under Section 13 of the Indian Easements Act, 1882 (Easements of necessity and quasi easements).

Conclusion

Thus, based on the aforesaid observations, the Supreme Court held that the Appellants could not establish that their predecessors-in-interest have used the disputed road peacefully, without any interruption from the Respondents, for more than 20 years and hence, the Appellants are not entitled to any easementary right by prescription. Further, as the Appellants can approach their Land through an alternative way, hence, they are also not entitled to easementary right by way of necessity as well. Therefore, the Bench upheld the Appellate Court’s Order dated 12-03-2009 and the High Court Order dated 01-10-2009 that held that the Appellants were not entitled to easementary rights in respect of the disputed road and as a result, the Apex Court dismissed the Appeals filed by the Appellants.

Editor’s Comments

Under the law, ‘easement’ has been defined under Section 4 of The Indian Easements Act, 1882. According to this Section, an easementary right is a right possessed by the owner of some other land, for his enjoyment of his own property. What the law says is that if one owns a land and the right to enjoy the possession and use of the land is dependant on the use of another person’s land, then such a right would be deemed to be an easementary right, which the law recognises. This would include a right to do something or to prevent something pertaining to the other land, which does not belong to him. For instance, a path that is used to reach one’d land or restricting an adjoining land holder from blocking the air or light from his land by constructing in a manner that would deplete the air and light from his land. However, in this case, when the Appellant sought easementary right over the Respondents’ Property, they were unable to prove that they were using the adjoining land to access their own land. Hence, without proof, a Court cannot accept a claim of easementary rights, if the person claiming it is unable to prove it.

 

Harini Daliparthy

Senior Associate

The Indian Lawyer

 

Edited by

Sushila Ram Varma

Chief Consultant

The Indian Lawyer